June 11, 2008 — Modern warfare presents new challenges to those who must interpret international humanitarian law, visiting experts said during a recent seminar at the University of Virginia's School of Law.

Members of the U.S. policy community, international relief workers, military officials and others met in Charlottesville from May 28-30 for "Applying International Humanitarian Law to Today's Conflicts," a seminar sponsored by the Judge Advocate General's Legal Center and School, the International Committee of the Red Cross and the Law School's Human Rights Program.

International humanitarian law, which is often referred to as the law of war, is based on international treaties such as the Hague Regulations and the Geneva Conventions and governs behavior during armed conflicts.

During a May 29 session, experts examined how the International Committee for the Red Cross operates in modern war zones, analyzed the challenges of defining combatants in unconventional conflicts and discussed how international humanitarian law applies to private military and security contractors.

Helping in Times of Conflict and Disaster

Though 90 percent of its budget comes from the world's governments, the International Committee for the Red Cross is an independent international organization, said Aleardo Ferretti, the ICRC's senior delegate to the armed forces of Canada and the United States.

The ICRC enjoys diplomatic status throughout the world, observer status at the United Nations and a global reputation for neutrality, said Ferretti, who joined the organization after a 20-year career with the Swiss Army.

Throughout the last 49 years, the ICRC has circled the globe many times, jumping from hot spot to hot spot dealing with natural and man-made disasters.

"If you enter a crises area, the chances are the ICRC has been in that particular country or region for many years," Ferretti said.

The organization's representatives remind countries of their obligation to teach and train their forces in the laws of war and the humanitarian rights of all the world's citizens, and remind states of treaty obligations such as the Geneva Conventions and their additional protocols, he said.

The key to the ICRC's effectiveness is its apolitical attitude and goal to reach victims of conflict or disaster no matter where they are or who the hostile parties are, he said.

Before the U.S. invasion of Afghanistan in 2001, the ICRC had been there for more than 20 years following Russia's invasion of the country.

"We worked with the mujahidin and the Taliban because they were the authority on the ground," Ferretti said. "We deal with who is in charge whether we like it or not, whether the international community recognizes them as a legitimate government or not."

Military Turns to ‘Soft Law'

In addition to making it more difficult to carry out humanitarian activities, modern asymmetric warfare  —  in which sides are not easily identified  — makes it hard to identify the combatants, or direct participants in hostilities, said Richard Jackson, a retired U.S. Army colonel who is now special assistant for the Army Judge Advocate General for laws of war matters.

"The law of armed conflict is about a balance between a military necessity and humanity," Jackson said. Members of the armed forces involved in a conflict are subject to attack; civilians are not.

To aid the identification of direct participants in hostilities, a group of government experts has issued interpretive guidance, which Jackson called "soft law," meant to help soldiers in the field identify determine who is a direct participant.

For example, irregularly constituted armed groups fall into the category of "armed groups," making them targetable under such guidance. This was a controversial change, Jackson said.

Targets involving human shields could go either way, depending on whether or not the human shields are voluntary or involuntary, he said.

Jackson said it is important to properly identify targets because the enemy exploits the uncertainties of asymmetric warfare. "They are also exploiting the protections that the laws of war give them; it's more important now to make sure you go through this distinction analysis and identify targets properly."

He argued that there should be a sanction for the failure to properly make such distinctions and that violators should be prosecuted under the law of war or domestic law.

Status of Military Contractors Unsettled

Though international humanitarian law addresses the rights and responsibilities of states and individuals, it does not cover the rights and responsibilities of businesses, corporations or other entities, according to Gabor Rona, the international legal director for Human Rights First, a U.S.-based international human rights organization. Rona previously worked in the legal division of the International Committee for the Red Cross in Geneva.

He said private military companies are not affected by international humanitarian law, but noted that states have responsibilities with regard to the military and security contractors they use and the people they employ.

Rona cited specific areas in which the question of the rights and responsibilities of contractors arise: Can a contractor target and can he or she be targeted or detained? What rules govern the treatment and prosecution of contractors taken into detention?

He said the answers depend on whether a contractor meets the four main criteria of being a privileged combatant, which dictate that combatants must be commanded by a responsible person, have a fixed or distinctive sign, carry arms openly and conduct operations in accordance with the laws of war.

If they do qualify, contractors are subject to rules under the Third Geneva Convention and may be targeted and detained until the conflict is over, he said. If those detained are judged instead to be civilians, they are governed by the Fourth Geneva Convention and ought to be released as soon as the detaining authority has determined they are no longer a threat to ongoing operations, he said.

Rona emphasized that authorities using contractors must not only determine whether or not such people would be considered privileged combatants and subject to targeting, but must also make the risks clear to the contractor. 

Difficult questions can arise over the distinction between participation in hostilities and self-defense, Rona noted.

"A contractor guarding a military facility could be considered to be in direct participation in hostilities. Even if the contractor is not considered to be a direct participant in hostilities, the facility itself can be a legitimate military objective and the contractor could be lawful collateral damage in the attack on the facility itself."

Rona said there are cases currently pending in U.S. courts that will decide the question of whether U.S. federal law can be used against private contractors. One of the issues being raised to deny such claims is what's known as the "contractor defense," in which contractors are soldiers in all but name and claim they are entitled to the same immunities that members of the armed forces are entitled to. Rona called that proposition questionable.

Even if the United States takes the position that its contractors cannot participate in hostilities, what they actually do on the ground will determine whether or not they are targetable, Rona said.

"Outside of armed-conflict situations or in non-international conflicts, it's necessary and important to take a much closer look at domestic and international human rights law to determine questions concerning the power to detain, the right to challenge detention and what rights to trial might prevail."